Ordering of Duplicative Indemnification Payments Clause Samples

Ordering of Duplicative Indemnification Payments. Solely for purposes of clarification, and without expanding the scope of indemnification pursuant to this Section 5.8, the Partners intend that, to the maximum extent permitted by law, as among (i) Portfolio Companies, (ii) the Fund and (iii) the General Partner and/or its Affiliates, this Section 5.8 shall be interpreted to reflect an ordering of liability for potentially overlapping or duplicative indemnification payments, with any applicable Portfolio Company having primary liability, the Fund having only secondary liability, and (if applicable) the General Partner and/or its Affiliates having only tertiary and subsequent liability. The possibility that an Indemnified Person may receive indemnification payments from a Portfolio Company shall not restrict the Fund from making payments under this Section 5.8 to an Indemnified Person that is otherwise eligible for such payments, but such payments by the Fund are not intended to relieve any Portfolio Company from any liability that it would otherwise have to make indemnification payments to such Indemnified Person and, if an Indemnified Person that has received payments from the Fund pursuant to this Section 5.8 actually receives duplicative indemnification payments from a Portfolio Company for the same fees, costs and expenses, such Indemnified Person shall repay the Fund as soon as practicable to the extent of such duplicative payments. To the extent necessary or appropriate under applicable law in order to effect such intention of the Partners in the case of potentially overlapping or duplicative indemnification payments by the Fund and a Portfolio Company, the Fund shall, to the extent permitted by law, have a right of subrogation against such Portfolio Company (exercisable in the sole discretion of the General Partner) if the Fund makes payments to an Indemnified Person pursuant to this Section 5.8 with regard to the same fees, costs and expenses for which such Indemnified Person was otherwise eligible for indemnification payments from such Portfolio Company. As used in this Section 5.8, “indemnification” payments made or to be made by a Portfolio Company shall be deemed to include (x) advancement of expenses with regard to indemnification obligations, (y) payments made or to be made by any successor to the indemnification obligations of such Portfolio Company and (z) equivalent payments made or to be made by or on behalf of such Portfolio Company (or such successor) pursuant to an insurance policy or ...